"'It’s respectability politics at the end of the day, and Black women know this'..."

"... said Cyndia Robinson, who owns Cure Nailhouse in Detroit. 'We’ve been dealing with this our entire lives. We’ve been told our hair, nails, bodies, clothes are too much.' She also emphasized that salons are about more than beauty. Nail salons, she said, can be spaces where culture is 'protected and passed down.' 'When we decide that these spaces don’t matter,' she said, '“we lose rooms where women survive and take care of each other.'"

From "When Did Bare Nails Become a Status Symbol?/From a 'Love Story' plotline to runways and street wear, minimal or nude nails are everywhere" (NYT).

From the comments over there, there's this, from a guy called Norman:

"In contrast to the refined intellectualism and impersonal aesthetic of artists like Sol LeWitt and Donald Judd, he offered an art that reveled in raw emotion, extroverted brushwork..."

"... and a fierce engagement with the complexities of 20th-century German history.... Mr. Baselitz’s 'Hero' series of 1965 and 1966 — blocky figures in thick impasto stumbling through tormented landscapes — plunged the viewer into a nightmare vision of postwar Germany. No less disturbing were the woodsmen, hunters and cows of the 'Fracture' series, disassembled into horizontal strips and merged with the landscape. In a break with convention, Mr. Baselitz began turning the central images in his canvases upside down in the late 1960s.... 'The hierarchy where the sky is at the top and the ground down below is in any case only an agreement, one we have all got used to, but one that we absolutely do not have to believe in,' Mr. Baselitz told the critic and historian Walter Grasskamp in 1984."

From "Georg Baselitz, German Neo-Expressionist Painter, Dies at 88/Along with contemporaries like Anselm Kiefer, he mounted a frontal attack on Minimalism and Conceptualism, the dominant 'cool' styles of the 1970s" (NYT).

Here's an example from the "Hero" series 

I wish Baselitz could have done the official portrait for... various political figures. But I will not say who because I'm chilled by the arrest of James Comey.

And here's an example from the "Fractures" series, totally inappropriate for an official portrait:

"Not so long ago, members of high society were fixated on trying to low-key their way out of the perils of income inequality."

"Minimalism and quiet luxury were in vogue. But in the wake of President Trump’s second election, it’s the luxe life at full volume. He gilded the White House, turning it into a rococo Liberace lair. Swaggy and braggy have replaced stealth wealth. Flaunting it is in. For women, that means sequins, diamonds, tight silhouettes and big hair....  And now there are the Bezos-Sánchez nuptials.... Ms. Sánchez brings to mind another unlikely Vogue subject: Ivana Trump. Ms. Wintour gave her a cover in 1990, shortly before her divorce from Mr. Trump, after worrying, as I reported in a biography of Ms. Wintour, that she was 'too tacky.'... As much as those with more understated taste might turn up their noses at the crassness of the Bezos-Sánchez wedding’s display, tacky is very clearly carrying the day. Maybe hating on tacky oligarchs is itself just elitist...."

Writes Amy Odell, in "The Bezos-Sánchez Wedding and the Triumph of Tacky" (NYT).

"Until now, arguments for limiting consumption have tended to come from the left rather than the right."

"They date back at least to the economist Thorstein Veblen, who, at the start of the twentieth century, wrote acidly about the 'conspicuous consumption' engaged in by grandees of the Gilded Age. More recently, a 'degrowth' movement has emerged, which aims to decrease consumption and to de-prioritize G.D.P. growth on the grounds that they are harmful to the environment and that, in any case, accumulating more 'stuff' doesn’t really increase the well-being of people.This argument depends on two concepts familiar to economists: the diminishing marginal utility of consumption, which is, roughly speaking, the notion that if you already own nineteen dolls, buying a twentieth won’t give you much pleasure, and competitive consumption, or the idea that many people are trapped in an endless cycle of trying to outshine their friends and neighbors with their purchases.... 'Trump, degrowther,' the leftist journalist Doug Henwood commented online last week.... 'What he is doing is fairly unprecedented: explicitly saying that he is willing to pay an economic price in terms of growth in order to protect something else that he thinks is valuable and important,' Daniel Susskind, an economics professor at King’s College London who is the author of the 2024 book 'Growth: A History and a Reckoning' told me...."

Writes John Cassidy, in "Donald Trump Versus Barbie/Can the Administration retain public support for a trade policy that could force Americans to buy less stuff?" (The New Yorker).

Why don't the anti-consumption lefties embrace Trump? 

My first reaction to Trump's "Maybe the children will have 2 dolls instead of 30" was: "This reminds me of what those on the left used to say to us

Maybe you have enough toys.

I'm trying to read "Trump, on Tariffs, Says ‘Maybe the Children Will Have 2 Dolls Instead of 30’/At the end of a cabinet meeting, the president allowed for the possibility that trade war could disrupt supply chains" (NYT).

This reminds me of what those on the left used to say to us around the theme of global warming: We have too much stuff already. We should think small. Less plastic. Consume less. Lighten your carbon footprint. 

The NYT writer, Shawn McCreesh, is offended that ordinary people are asked to do with less by "the billionaire, crypto-salesman, golf-club-operating, Palm Beach-by-way-of-Fifth Avenue president with the golden office and the golden triplex apartment."

Reminds me of how righties would criticize the experts and celebrities for living in mansions and flying halfway around the world in private jets to hobnob at climate change conventions.

Facilitate and effectuate.

From the Supreme Court's statement in Noem v. Abrego Garcia:

On Friday, April 4, the United States District Court for the District of Maryland entered an order directing the Government to "facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7." ... 

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs....

That's what you call "minimalism." 

Madison, Wisconsin ranks #4 in this list of "minimalism-oriented cities."

I'm reading "The Midwest and South Are Home to Clusters of Minimalism-Oriented Cities but Salt Lake City Is the Nation’s Minimalist Heaven" (RentCafe).

 

 

Why are there so many videos about minimalism?

And why are they so long and complicated?

I'm talking about unwatchable bilge like this and this.

Masterpiece Cakeshop is not a judicial masterpiece.

It's kind of a mess! It's the Cake Wrecks of opinions...



I'm reading Richard A. Epstein at SCOTUSblog, "The worst form of judicial minimalism — Masterpiece Cakeshop deserved a full vindication for its claims of religious liberty and free speech." And he wants something CLEAR!

Judicial minimalism may sound nice in theory. But where the court is faced with a clear question of high principle, the whole nation loses when it is handled in a muddled and ham-handed way. The Cakeshop fiasco needs to be put behind us. A decision that gives blanket exceptions for religious liberty on grounds of sincere belief does all that is needed to protect religion while leaving the basic structure of CADA intact. Pity that this Supreme Court decision opens yet another chapter in the endless culture wars.

In art and architecture, minimalism gets you to something sleek and simplified and instantly comprehensible. You get the opposite from judicial minimalism, which holds back from stating big clear rules and makes a special case out of this one case, resolves it, and leaves us on our own to figure out how like or unlike it is to the next case and whether this or that factor ought to tilt the outcome another way.



It's not aesthetically pleasing! Epstein offers a clear rule that he wishes the Supreme Court would adopt: "blanket exceptions for religious liberty on grounds of sincere belief." That's at the opposite end of the spectrum from the clear rule that Justice Scalia articulated in Employment Division v. Smith, which Epstein calls "one of the late Justice Antonin Scalia’s worst opinions."

Scalia liked clear broad rules, and his rule — which is the Court's most important statement of the meaning of the Free Exercise Clause — is that the government can hold everyone — even those with religious compunctions — to "neutral, generally applicable" rules.

Smith was not judicial minimalism. And Masterpiece Cake doesn't question the big general rule of Smith. What Masterpiece Cake does is find a lack of neutrality: The government didn't get into the big safe harbor Smith's clear rule because it expressed hostility to religion. Don't do that, government, and you'll be out of the exception and into the big, non-minimalist rule.

So what the Court can't tell government exactly when hostility will be detected? Government is tasked with suppressing contempt for religion and making it seem as though religious people get treated with neutrality. That's the fuzziness Masterpiece Cake left us with, but that fuzziness was always there around the edges of Smith.

Don't let Epstein bamboozle you. He wants to flip Smith. And Antonin Scalia is not here to defend his legacy.

This is so much better than that pineapple on the subject of whether putting something in a museum makes it art.

Please watch the video before forming an opinion — "Sara Berman's Closet."

This exhibition represents Berman's life from 1982 to 2004, when she lived by herself in a small apartment in Greenwich Village. In her closet Berman lovingly organized her shoes, clothes, linens, beauty products, luggage, and other necessities. Although the clothing is of various tints—including cream, ivory, and ecru—it gives the impression of being all white.

With its neatly arranged stacks of starched and precisely folded clothing, the closet is presented as a small period room in dialogue with The Met's recently installed Worsham-Rockefeller Dressing Room from 1882, which features clothing from the 1880s of the type that Arabella Worsham, a wealthy art patroness, might have worn....

I got there via this NYT piece, "When the Gospel of Minimalism Collides With Daily Life," which is mostly about a lifestyle blogger who had a house decorated in a cluttered style, then had a minimalism epiphany, then readjusted back toward slightly cluttered.

According to the sociologist Joel Stillerman, author of “The Sociology of Consumption,” among certain educated, upper-middle-class segments of the United States and other Western societies, there is a connection between minimalist design and a quest for well-being. But minimalism is also meant to project taste, refinement and aesthetic knowledge. “These people,” he said, “are making the statement that ‘I can afford to have less. I appreciate books and travel and good meals.’”

Mr. Stillerman calls these post-materialist values; in other words, simplicity as a form of cultural capital. This concept is evident in a current exhibit at the Metropolitan Museum of Art in New York, “Sara Berman’s Closet”....

Still, critics chide minimalists for a kind of faux self-discipline. After all, if you can afford to toss your stuff, you can probably reacquire it should you change your mind....

I got to that NYT piece through Instapundit, who reacted to the description of the blogger's minimalism phase: "She went full-on Dwell, even building a chicken coop, the de rigueur symbol of suburban simplicity, in the backyard." Glenn's comment was: "[I]f you think having a chicken coop is about 'simplicity,' it’s because you’ve never kept chickens."

It's about wanting something that "minimalism" or "simplicity" isn't really the right word for. Those words hide the real psychology going on, which I assume varies from person to person. It could be a desire for control, a fetishization of purity, a fantasy of authenticity, a need for something like religion, a solution to aimless anxiety.

The best tiny house.

Here's the article: "A Secret, Little Glass Home in the Heart of New York" (in the NYT).

Home? Yeesh. Never use "home" when "house" is at all possible. But it's particularly bad there. Not only are you talking about art and architecture, but there's no domesticity or family warmth at all.

Naysayers have always charged that Johnson’s committed minimalism had none of the political and social gravitas of his European influencers — indeed, his later-renounced support of Nazism would haunt him all his life. He was a social creature, a party boy, and the Guest House was a monument to ego, money and establishment, not to mention a place that lacked any conventional domestic comforts.

The place is called the "Rockefeller Guest House." It was built as a place to distance visitors from the family. There's a reason "guest home" doesn't sound normal. And, of course, "glass home" looks ridiculous when "glass house" is so obviously a standard expression — in the old saying "people in glass houses shouldn't throw stones" and in connection with Philip Johnson.

But it's only the headline writer who used "home," so throw the stones at her (or him).

AND: Here's the post from last week: "'The designation between house and home – is it semantics or is there a difference. Can I as 'the architect' influence the difference one way or another?' Is it all up to the people who move into the structure? Is modern-style architecture impairing their progress from house to home?"

"Well, religious beliefs aren't reasonable. I mean, religious beliefs are categorical. You know, it's God tells you. It's not a matter of being reasonable. God be reasonable? He's supposed to have a full beard."

Justice Scalia riffed about religion, God, and beards at today's oral argument in Holt v. Hobbs — PDF — the case about whether the Religious Land Use and Institutionalized Persons Act entitles a Muslim inmate to wear a half-inch-long beard despite the prisons rule against all beards. The inmate's lawyer noted that Holt was only asking for a half-inch beard, even though he really needed, for religious reasons, to wear a full, long beard. He was compromising, to be reasonable.

The oral argument quickly devolved into hand-wringing about whether the Court was going to have to decide a half-inch today, an inch in the next case, then another case about 2 inches.

Anyway, Scalia was right. God is supposed to have a full beard:

"If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds..."

"... the combined effect would be to reaffirm America's democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question," writes lawprof and former federal judge Michael McConnell.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage — a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer — and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation's culture wars.

Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides.

If we welcome the Court's calming of our culture wars — if we believe calming culture wars is a longstanding part of judicial virtue — we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships.

Individual rights matter, and it is the Court's duty to say what they are. If there is no proper case before the Court — if there really is no standing — then the Court has the duty to shut up. But the Court should no more shrink from saying what rights are than it should strain to find them to be something other than what they are.

If the Court could demonstrate its capacity to live up to these duties and if we could believe in the accuracy of these announcements about the substance of our rights, then telling us what our rights are ought to have a calming effect. And yet even if the Court's reputation is so far gone that we can't believe its announcements anymore, the duty remains.

Maybe it won't be calming, but the notion that the Court must calm us, when it is a question of our rights, defies the meaning of rights.

Man lives in a 78-square-foot space.

He's an architect in his 20s, living — roommate free! — in New York City.  Based on the street scene, he's right about here. He seems reasonably satisfied with it, as he describes minimalist impulses going back to childhood. There's room for a bed/sofa and a desk. My only outburst, watching that video, was "does he have WiFi?"

Picture a prison cell that size. Would it be too cruel? But inject the freedom to walk out the door at any time and have all of NYC. It's not cruel at all. When you're sleeping in your bed, the space around you doesn't really matter, and when you're sitting at that desk, it's not too different from a carrel in the library.

Barack Obama has not flip-flopped or betrayed his lefty fans. You need to understand: He's a "visionary minimalist."

Cass R. Sunstein offers up a useful term — so that everyone can always understand everything about Barack Obama:

Of course Obama is a progressive.... But, by nature, he is also an independent thinker, and he listens to all sides. One of his most distinctive features is that he is a minimalist, not in the sense that he always favors small steps (he doesn't), but because he prefers solutions that can be accepted by people with a wide variety of theoretical inclinations.

When he offers visionary approaches, he does so as a visionary minimalist -- that is, as someone who attempts to accommodate, rather than to repudiate, the defining beliefs of most Americans. His reluctance to challenge people's deepest commitments might turn out to be what makes ambitious plans possible--notwithstanding the hopes of the far left and the cartoons of the far right.

He is infinitely complex, people. It's you that need to get up to speed. Readjust. Visionary minimalism makes everything right.

And, no, it's not a new round of triangulation. Don't pin that on the new man:

Just as he resists ideological templates, Obama does not believe in "triangulation"; his skepticism about conventional ideological categories is principled, not strategic.

(Did that hurt, Bill?)

Obama does not follow old-line political orthodoxies. Above all, Obama's form of pragmatism is heavily empirical; he wants to know what will work.

That can't be wrong.

[I]n his empiricism, his curiosity, his insistence on nuance, and his lack of dogmatism, Obama is indeed a sort of anti-Bush--and perhaps the best kind. If the Bush administration has often operated on the basis of the president's "instinct," we should expect to see, from Obama, a rigorously evidence-based government....

The larger point is that Obama's departures from left-wing orthodoxy should not be understood as a betrayal of his own beliefs, or as a kind of "tacking to the center." Instead, they reflect something altogether different: an independence of mind, and a rejection of doctrinal filters, that we do not often see in candidates for public office.

If I could know that's all true, I would vote for Obama. But it could just as well be a guise, a cover, to get me to fall for something I'm not going to want at all. After you do all that listening and evidence-collecting and cogitating, you still have to make the call. It can't be pure science. The instincts will tip the answers one way or the other. But Cass Sunstein insists that there's a rejection of doctrinal filters. I don't know that it is possible to think without something like a "doctrinal filter." But maybe it's possible that Obama does -- or at least comes closer to unfiltered thinking than anyone else is likely to do.

ADDED: This isn't the first time Sunstein has expatiated on Obama's "visionary minimalism" in TNR. Here's his piece from last January.

"And whatever happened to the 'Kennedy Court'?"

Asks Linda Greenhouse, in a survey of the Roberts years on the Supreme Court that notes the decline of 5-4 decisions. There's only been 1 this year (and it was a "low-profile" statutory case where Justice Kennedy, in dissent, was not the deciding vote). Last year a third of the cases were decided 5-4. What's going on? It may be that the more contentious cases will come in the last days of the term. Greenhouse notes that Justice Stevens has voted with the conservative Justices in a few key cases:

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

Or is it the Chief Justice playing a moderating role and following through on the ideas about minimalist decisions that he expressed at his confirmation hearings?

Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice....

The court’s modulated tone may also stem from the fact that this is an election year....

It's interesting that this line is well-separated from the discussion of Justice Stevens behavior. Is he perhaps hoping for a President who will appoint a liberal Justice or 2? It would not help that agenda to display the spectacle of 4 liberal Justices eager to change everything if only they could get one more vote.

Who's to say what these big patterns mean as cases are decided individually, by judges forming opinions mostly on their own? But Greenhouse's observations sharpen our view as we look to see the torrent of cases in the upcoming days. (And how strange it will be when we won't have Greenhouse to sharpen the picture for us anymore!)

ADDED: Jonathan Adler objects to the Greenhouse analysis.

"The Tobacco Monologues."

The new Minnesota smoking ban has an exception for actors in theatrical performances, but who is an actor and what is a theatrical performance? Aren't we all really actors in some sense, and when you go to a bar, are you not playing some sort of role? Minnesotans are working the loophole and, along the way, saying something about the line between life and art.

At The Rock [a hard-rock and heavy-metal bar in suburban St. Paul] earlier this week, a black stage curtain covered part of the entrance, and a sign next to it with an arrow read, "Stage Entrance." Along the opposite wall, below a sign saying "Props Dept.," was a stack of the only props needed: black ashtrays.

At the door was a printed playbill for that night's program, with a list of names of the people portraying bartenders and security guards. Playing the owner: "Brian."

Courtney Conk paid $1 for a button that said "Act Now" and pinned it to her shirt. That made her an actor for the night, entitling her to smoke. She turned in an understated, minimalist performance, sitting with cigarette in hand and talking to a bass player with the band....

At Barnacles Resort and Campground along Lake Mille Lacs, a "traveling tobacco troupe" dressed in medieval costume on the first theater night. Mark Benjamin, a lawyer who pushed bars to exploit the loophole, wore tights, a feathered cap and black boots.

"Hey, I'm a child of the '60s. I can do a little improv," he said. His improv amounted to speaking in medieval character to other patrons....

One bar on northern Minnesota's Iron Range, the Queen City Sports Place, calls its nightly smokefest "The Tobacco Monologues."

Scalia mocks minimalism.

Linda Greenhouse shows where Justice Scalia has recently expressed his antagonism toward the more moderate style of the Chief Justice.

In the issue ads case (Wisconsin Right to Life): "This faux judicial restraint is judicial obfuscation."

In Freedom From Religion, the case that restricted standing to use the Establishment Clause to challenge Executive Branch decisions: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions."

But the liberal lawprofs consulted by Greenhouse don't seem too impressed by what she wants to portray as a rift among conservatives:

As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”

... Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.

Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.

I tend to agree with this. Roberts (with Alito) and Scalia (with Thomas) are not at cross purposes. How shocking it would have been if the Court in those two cases gone ahead with the overruling that Scalia recommended. What a gift it would have been to the Democratic presidential candidates, who would have impressive new substance for scaring people about what another Republican President would do to the Court.

"Bong Hits 4 Jesus" -- the teacher wins, the student loses.

I'm only reading the outcome over on SCOTUSblog:

The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message.

Here's my post written after the oral argument. I sympathized with the student and thought that the Court should acknowledge that his rights were violated, but thought the teacher should win on qualified immunity grounds, given the unclarity of the law:

But the Court can also say that this wasn't yet clear, which would save the principal from having to pay damages. It would, however, set the stage for the next suit for damages, as the Court can use this case to make the law clear. And it should.

I'm waiting to see the opinion, but if SCOTUSblog is correct, the Court simply rejected the student's claim that he had a free speech right here.

ADDED: Here's the opinion. Chief Justice Roberts is joined by Scalia, Kennedy, Thomas, and Alito, and we've got concurring opinions from Thomas (alone) and Alito (joined by Kennedy). Breyer (alone) has a mixed opinion about it (concurring in the judgment in part and dissenting in part). And Stevens dissents, joined by Souter [ADDED: and Ginsburg].

A big dispute between the majority and the dissent is whether "Bong Hits 4 Jesus" is a pro-drug message or just ridiculous nonsense. And which way does that cut? Is the student in a better position if we see it as a pro-drug message -- as the majority does -- because then it's political speech and entitled to more protection? No, according to the majority:

The danger here is ... serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy.

Justice Stevens chides the majority for putting low value on free speech in this case and doing the opposite in today's other free speech case, Wisconsin Right to Life. Roberts answers in a footnote: "there is no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life."

Justice Breyer comes closest to adopting the position I recommended. He would simply say that the teacher has qualified immunity. Unlike me, he would not also use the case to clarify the law. There is a very important issue of judicial restraint here, one that Breyer has written about before. There is a case -- Saucier v. Katz, 533 U. S. 194, 201–202 (2001) -- that says that courts ought to decide first if a right was violated and then determine whether it was clear enough at the time so that the government official should be deprived of qualified immunity. This order of decisionmaking violates the precept that courts should avoid unnecessary questions of constitutional law. Moreover, the Court missed an opportunity to reach consensus (and to proceed by minimalism):

In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick’s banner. Post, at 1 (opinion of Stevens, J.). And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).

This is an appealing argument, but it has a troublesome downside. If the courts keep avoiding making the law clear, defendants continue to prevail on immunity grounds. This could mean that there are rights that we never get to learn about and that government officials are able to continue to violate with impunity.

Justice Thomas practices originalism, and that has him looking back on old school traditions:

[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

And no one was unfurling wacky, druggy banners.

Reviewing the school speech cases, he concludes:

I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.

He's ready to erase the precedent that began with Tinker (the case about students wearing black armbands to protest the war in Vietnam):

Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.” Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public Schools, 65 Geo. Wash. L. Rev. 49, 50 (1996). We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante, at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.” Tinker, supra, at 526 (Black, J., dissenting).

My, that's bracing. I'm a teacher. And I must confess that gave me a frisson. A perverse frisson?

But let's finally get around to reading what Justice Alito has to say. Joined by Justice Kennedy, this opinion represents the decisive fourth and fifth votes:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (Stevens, J., dissenting)....

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment , as if they were private, nongovernmental actors standing in loco parentis....

In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508–509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.

So don't forget that the school is the state and children (and their parents) are pretty much compelled into submission. Ordinary, this would move us to respect your freedom of speech up to the point of "substantial disruption." But drugs are different. They're very, very dangerous. So the school can ban speech advocating their use -- that is, their illegal use. If you want to say it is bad that drugs are illegal... well, then that's different. And this case isn't saying anything about that.

ADDED: I'm correcting what was a garbled second to the last sentence. (I'd written "If you want to say something bad it is that drugs are illegal..." instead of "If you want to say it is bad that drugs are illegal...") I apologize for the confusion.

The Supreme Court finds that Freedom From Religion lacks standing

Justice Alito writes for the majority plurality in Hein v. Freedom From Religion, which was decided 5-4. I'm waiting to get access to the opinion and will write in more detail very soon, but here is my analysis of the case, written back when cert was granted:

This case raises the question of who may sue to enforce the Establishment Clause. The plaintiff (which filed the case in Madison, Wisconsin) relied on the status of its members as taxpayers to challenge the practice of holding conferences the White House to assist religious groups in applying for federal grants -- part of President Bush's Faith-Based and Community Initiative. Judge Shabaz dismissed the case on the ground that Congress hadn't earmarked the money to go to religion and therefore that the plaintiffs could not use the special doctrine -- articulated in Flast v. Cohen, 392 U.S. 83, (1968) -- that allows taxpayers to enforce the Establishment Clause. The Seventh Circuit reversed, with Judge Posner writing the opinion.

Here's Posner's opinion....

The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103....

At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub. L. No. 108-334, 118 Stat. 1298-99.

The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.

Citing precedent, Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction -- as opposed to the Article III constitutional limitations. Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine -- which has tightened up in the years since Flast and which has long made Flast seem like an anomalous safe harbor for Establishment Clause litigants.

Since the constitutionalized standing doctrine of the Burger and Rehnquist Courts presents a problem for those who want to argue that Flast was correctly decided, I should think it would be quite hard to argue nowadays that Flast ought to be broadened. Yet Flast is stare decisis, and Posner's practical reasoning is impressive. What if the Secretary of Homeland Security used general funds to build a mosque and pay an Imam?

The Court today has reversed the Seventh Circuit, but it did not overrule Flast, though -- according to SCOTUSblog, linked above -- two Justices wrote that it should be overruled.

ADDED: Here's the opinion. Justice Alito, joined only by Roberts and Kennedy, distinguishes Flast because the spending in that case was "a direct and unambiguous congressional mandate" which led the Court to find a "logical link" between the taxpayer status and "the type of legislative enactment attacked." In today's case, all Congress did was appropriate general funds to run the Executive Branch. The decision that the taxpayers challenged was entirely made within the Executive Branch:

It cannot be that every legal challenge to a discretionary Executive Branch action implicates the constitutionality of the underlying congressional appropriation. When a criminal defendant charges that a federal agent carried out an unreasonable search or seizure, we do not view that claim as an as-applied challenge to the constitutionality of the statute appropriating funds for the Federal Bureau of Investigation.

In the end of his opinion, Alito gives the reasons for declining to expand Flast. It has been confined over the years, and it is out of keeping with the values the Court has found important in its more recent standing cases. He considers the hypotheticals that Judge Posner had worried about, such as an Executive Branch decision to build a "house of worship." (Unlike Posner, he doesn't specify "mosque" or the building of any other particular religion.) His answer is that it hasn't happened, it's unlikely to happen, and, if it did happen, Congress could act. But I'd like to know what if Congress liked what the Executive Branch did and chose not to act? How would anyone have standing to sue about Congress's inaction? Alito only says is that the respondents "make no effort to show" to show that no one would have standing. (I note that if there were, say, a government mosque, you wouldn't need to be able to sue as a taxpayer. You could sue because you are in a position to see the building.)

Justice Kennedy concurs, expressing his concern about "the constant intrusion upon the executive realm that would result from granting taxpayer standing" here.

Justice Scalia, joined by Justice Thomas, says that the Court ought to overrule Flast. They do not join Alito's opinion, which, Scalia writes, is irrational, both in preserving Flast and in trying to distinguish it. In his view, the Court, in deciding whether a plaintiff has a good-enough injury to meet the requirements of Article III, needs to observe the difference between "Wallet Injury" and "Psychic Injury":

Psychic Injury... has nothing to do with the plaintiff’s tax liability. Instead, the injury consists of the taxpayer’s mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer’s purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated.

Flast treats what is really a Psychic Injury -- I'll follow Scalia's approach to capitalization -- as if it were a Wallet Injury. The plaintiffs aren't suing to get their money back, but because they feel wounded by what the government has done with it. If feeling bad about what the government has done is ever enough, why isn't it always enough?

MORE: Scalia takes a shot at Chief Justice Roberts in the end -- not by name, but by using one of his favorite words: "minimalism." Insisting that the question of overruling Flast must be faced, Scalia writes:

Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.

And he has this to say about stare decisis:

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.

He ends with the acknowledgment that there are plenty of people who don't care very much if legal doctrine doesn't fit together logically:

My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that “[t]he life of the law has not been logic: it has been experience.” O. Holmes, The Common Law 1 (1881).

"Snappy epigram." So much for the great Justice's grandest insight!

But what experience has shown is that Flast’s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.

Translation: Logic is practical.

And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect.

So: Once the doctrine is sufficiently incoherent, the reliance ground for stare decisis is lost. Note to those who have a precedent they'd like overruled: Soften it up with exceptions and distinctions first. But judging from this case, that's only a technique that will work on Scalia and Thomas. The Roberts-Kennedy-Alito group will proceed by minimalism.

AND: Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, is like Scalia in that he can't see the reason for the distinction Alito is making. For him, however, this is a reason to extend Flast and find standing. Souter stresses the importance of denying tax money to religion. He quotes James Madison's Memorial and Remonstrance Against Religious Assessments: "the government in a free society may not 'force a citizen to contribute three pence only of his property for the support of any one establishment' of religion." Even a pittance matters:

The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the “Psychic Injury” that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported.

He's looking at you, Scalia.

YET MORE: So the key to the outcome is the failure of Souter's argument to appeal to Justice Kennedy. You could say Souter (like Scalia) invokes general principle and logical coherence, and Kennedy is looking at the practical consequences. But Souter offers to draw the line at Establishment Clause challenges, and Kennedy seems to think he must reject taxpayer standing here in order to avoid judicial intrusion into all sorts of Executive Branch decisions, which might be challenged on various grounds. And look at this praise for executive independence (and confidentiality):

The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society.... The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information.